Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
Donald Hall, an inmate at the Kentucky State Reformatory (KSR), submitted two open records requests to KSR, dated April 10, 2017. One request was for "log shift reports" by Unit Administrator Robert Atkin, "Legal and Grievance Aide Coordinator for dates of July 23, 2015 and October 13, thru 20, 2015 that mentions me by name of any incidents on those dates." The second request was for "log entries by Julie Ashbaugh from her job assignment as Security CO at the academic building for July 23 and 24, 2015, and October 20, thru 23rd and Nov 1, thru 16 that mentions me by name to any incidents on those dates." The forms have the stamp, "Received April 12 2017 KSR Records." In the "Disposition" portion of each request form, Kim Campbell, Offender Information Specialist, KSR, had written "Denied -- do not exist." The date of Ms. Campbell's signature, on both request forms, is "4/21/17."
Ms. Campbell also provided a more detailed explanation to Mr. Hall, typed on a separate piece of paper, with the return of his records request. Ms. Campbell signed the piece of paper, and dated it "4/21/17." In regards to the request for records by UA Robert Atkin, Ms. Campbell stated that she had spoken "with Captain St. Clair and no log books were kept at that time, thus one does not exist." 1 In regards to the request for records of log entries by Julie Ashbaugh, Ms. Campbell stated that, "Captain St. Clair conducted a thorough search of the warehouse and no log books from the academic buildings could be located." In response to each request, Ms. Campbell responded: "[i]n accordance with the Attorney General's opinion # 82-234, I am not required to create a document(s) and/or record(s) which do not already exist."
Mr. Hall appealed KSR's response, asking this office to "review and investigate the denial" of the two requests to determine if KSR's responses were in violation of the Open Records Act, and whether the denials were valid. On appeal, Catherine M. Stevens, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of KSR. Ms. Stevens reiterated that the records were "not known to exist and none were discovered after a search of the relevant areas of the institution." She cited to a series of decisions from this office for the proposition that an agency cannot afford a requester access to a record that it does not have or which does not exist, and to other decisions of this office which hold that an agency is not required to "prove a negative" when explaining that it does not have a record or that it does not exist.
In reviewing the record on appeal, we note that Mr. Hall's requests were received by KSR on Wednesday, April 12, 2017, but that Ms. Campbell's responses were dated Friday, April 21, 2017. Although KRS 61.880(1) states that a public agency shall have "three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request" to respond to an open records request, KRS 197.025(7) allows correctional facilities "five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, " to respond. Having received Mr. Hall's request on April 12, 2017, KSR had until April 20 to respond to the requests. 2 KSR committed a procedural violation of the Open Records Act by not responding until April 21st.
As the Attorney General has consistently recognized, a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. However, in addressing the obligations of a public agency when denying access to public records for this reason, the Attorney General has observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9 (other citations omitted). While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient." 02-ORD-144, p. 3; 09-ORD-145. In short, "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; 14-ORD-225.
In regards to the records request for reports by UA Robert Atkin, KSR's answer is very definitive in stating that "no log books were kept at that time," and we have no basis to contest the agency's response for those records. In contrast, Captain St. Clair's answer regarding log entries by Julie Ashbaugh was that, after a thorough search of the warehouse, "no log books could be found." We find this answer somewhat ambiguous as it leaves open the possibility that the log books may exist, or may have existed at some time, and that the search merely did not find the responsive records. However, as Mr. Hall has provided no basis for this office to determine that such records should exist, we cannot presume the existence of the records. 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); 14-ORD-107; compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ). Based on the foregoing, we affirm KSR's disposition of Mr. Hall's open records requests.
Mr. Hall's appeal also argued that this office must conduct an investigation regarding management of records at KSR, but our authority under KRS 61.880(2) is limited to reviewing the request and denial, and issuing a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884. An open records appeal is not the proper forum in which to resolve Mr. Hall's other complaints. See 99-ORD-121, pp. 17-18; 08-ORD-142, p. 6.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes